Below is my column in The Hill newspaper on the Stone controversy. The column suggested that the Trump tweet before the change in the sentencing memorandum in the Stone case may not have been related, but simply another example of Trump triggering a controversy with an irresponsible and ill-timed tweet. After the column, Trump made the situation even worse by publicly complimenting Attorney General Bill Barr. As I mentioned at the time, the “atta boy” was more damaging than the original criticism. Barr responded correctly by criticizing the President’s continued public comments on pending cases and attacks on federal judges. While the President is clearly undeterred, both the change in the sentencing recommendation and the criticism of the President were well warranted.
Here is the column:
Washington awoke this morning to a brand-new scandal, after the resignation of four Department of Justice (DOJ) trial prosecutors in a high-profile case and questions of whether a presidential screed prompted a change in sentencing recommendations for a friend. It is all too familiar: a tweet, a change, and a scandal.
As with the Russia scandal, the question is one of sequence. It is what academics call a “causality dilemma.” Forget the chicken and the egg — this is the Trump administration. The perennial question is what came first: the bull or the china shop.
Since his arrival in Washington, Donald Trump has clearly relished the image of a raging bull, but he often suggests that the china shop was built around him. The latest broken china, so to speak, is the remnants of what once was the prosecution of Trump confidant Roger Stone.
It is a signature scandal for Trump, who went public after prosecutors sought a seven- to nine-year sentence for Stone; soon afterward, the Justice Department rescinded the initial sentencing recommendation and the four trial prosecutors resigned en masse. Now there are calls for investigations, as well as widespread denunciations of an “infestation” of political interference and a president run amok.
As a threshold matter, House Speaker Nancy Pelosi (D-Calif.) is correct in calling for an investigation into the matter. It is uncommon to see the DOJ suddenly withdraw a sentencing recommendation in a high-profile case, and even more uncommon for a team of prosecutors to resign en masse. Legitimate concerns are raised when a president inappropriately lashes out at his own Justice Department in a case involving not just a close associate but someone who refused to testify against him or his campaign. When that attack is followed by a dramatic change in the case, there is a need to look at whether political influence has corrupted the prosecutorial process.
This, however, has that familiar feel.
In the Russian scandal, I supported the appointment of a special counsel after President Trump fired former FBI director James Comey, but I said at the time that I did not believe there was an underlying crime or collusion with Russia. The fact is that the sequence of events creates reasonable questions of presidential interference. It turned out that there was no Russian collusion and that Trump’s call for Russia to find Hillary Clinton’s missing emails was inappropriate but not incriminating.
The Justice Department — and Trump — have publicly stated that the president had no conversations with the DOJ on the sentencing change. Indeed, the department issued a statement that the decision to change the recommendation was made before Trump publicly denounced what he called a “miscarriage of justice” in the case. If true, the question becomes whether it was inappropriate for Attorney General Bill Barr or officials at Main Justice to demand such a change. Only a full disclosure of the facts can answer that question, but there are reasons why such an intervention might be appropriate on the merits.
While correct in seeking answers to these questions, Pelosi is wrong in her declaration that a change of the sentencing recommendation is, on its face, “outrageous” and that “DOJ has deeply damaged the rule of law by withdrawing its recommendation.” You’ll note she is supported by many of the same experts who declared clear criminal conduct by Trump in the Russia investigation and then the Ukraine investigation.
The problem is that the DOJ’s new sentencing position is the correct one. When the original sentencing recommendation was filed, many of us denounced it as excessive and ridiculous, given the underlying facts. While it is true that the recommendation was within the sentencing guidelines (albeit on the high end), that was due to DOJ prosecutors stacking counts against Stone for his false statements and tampering with witnesses. I have long been critical of the case as being overcharged, as well as objecting to the prosecutor’s heavy-handed conduct.
In its new filing, the DOJ told the court: “While it remains the position of the United States that a sentence of incarceration is warranted here, the government respectfully submits that the range of 87 to 108 months presented as the applicable advisory Guidelines range would not be appropriate or serve the interests of justice in this case.” That just happens to be right in every respect, from the demand for jail time being warranted by Stone’s conduct to the recognition that he should not be sentenced for the rough equivalent of bank robbery or manslaughter.
The DOJ also was correct in changing the sentencing recommendation for former national security adviser Mike Flynn. The charge against Flynn for a single false statement to federal investigators was highly dubious from the start; he pleaded guilty to a single false statement about a meeting with Russian diplomats during the Trump presidential transition. The meeting was entirely legal, and Flynn did not deny the meeting. However, he denied discussing sanctions with the Russians, and Robert Mueller charged him. In the meantime, a key figure in that investigation, former FBI deputy director Andrew McCabe, was alleged to have lied to investigators but was not charged with any crime.
In both cases, Main Justice was right to rein in its prosecutors. Indeed, that is one of the core functions of Main Justice. Local prosecutors are not independent contractors meting out justice as they deem fit. They are part of a department of prosecutors, subject to the direction and authority of Main Justice. The U.S. Attorney’s Manual expressly states that “Department of Justice and Criminal Division policies impose limitations on the authority of the United States Attorney to decline prosecution, to prosecute, and to take certain actions relating to the prosecution of criminal cases.” That includes sentencing recommendations.
Again, none of this means there are not legitimate questions that need to be answered, but the sequence of events may not prove as damning as reported. It comes down to the same causality dilemma of chickens and eggs. Sometimes the answer is not as binary as suggested by the question, as Neil deGrasse Tyson explained in his answer: “Which came first: the chicken or the egg? The egg — laid by a bird that was not a chicken.” The same may be true of eggs laid by a president who is not a prosecutor.
Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.